McEwen Mfg. Co. v. Town of Covington
| Decision Date | 09 June 1925 |
| Docket Number | 13773. |
| Citation | 239 P. 219,112 Okla. 40,1925 OK 481 |
| Parties | McEWEN MFG. CO. v. TOWN OF COVINGTON. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 22, 1925.
Syllabus by the Court.
It is provided by law that municipal subdivisions of the state shall be controlled in their fiscal management by boards specifically named. Claims against such municipalities arising from express or implied contracts, must be presented for allowance in the manner and form provided by sections 8595, 8596, Comp. Stat. 1921, before such board acquires jurisdiction to lawfully pass upon the same. Lawful action by such board in disallowing such claims in whole or in part is a prerequisite to maintaining an action in court thereon.
One who demands payment of a claim against a municipality upon an express or implied contract, must be able to point out the law authorizing the indebtedness and the authority of the proper officers for incurring the same. It is not sufficient that the services performed or the things furnished were needful and beneficial.
Commissioners' Opinion, Division No. 1.
Appeal from District Court, Garfield County; J. C. Robberts, Judge.
Action by the McEwen Manufacturing Company against the Town of Covington to recover upon a certain open account. Judgment for defendant, and plaintiff appeals. Affirmed.
This action was commenced September 13, 1921, in the district court of Garfield county by plaintiff filing therein its petition against the defendant, which petition, omitting caption and exhibits, is in the following language:
Comes now the plaintiff and for cause of action against the defendant alleges: That the plaintiff is, and during all the time hereinafter set forth, was a corporation organized and existing under the laws of the state of Oklahoma; that the defendant, town of Covington, is, and during all the time aforesaid, was, a municipal corporation, situated in Garfield county, state of Oklahoma, and organized and existing under the laws of said state; that between the 20th day of October 1919, and the 5th day of November, 1920, the plaintiff sold and delivered to the defendant, for its use, and at its instance and request, material, goods, wares, and merchandise of the value, and for which the defendant agreed to pay the plaintiff the sum of $4,106.97; that said account has been duly presented to the defendant and that it has paid the plaintiff thereon the sum of $2,403.36, leaving a balance due and unpaid upon the same in the sum of $1,701.61, all of which is more fully shown by an itemized statement of said account, hereto attached, marked Exhibit A and made a part hereof; that said statement is just and correct; that no part thereof has been paid, except as aforesaid; and that there is due the plaintiff from the defendant thereon the sum of $1,701.61, with interest at 6 per cent. from the 4th day of November, 1920. Wherefore plaintiff prays judgment against the defendant in the sum of $1,701.61, with interest at 6 per cent. from the 4th day of November, 1920, and costs of suit.
After motion to make the petition more definite and certain, and after a general demurrer had both been overruled, defendant filed its answer consisting of a general denial and certain special defenses. These special defenses consisted of affirmative allegations that the claim sued on had never been audited by the board of trustees of the town; a denial that the goods, wares, and merchandise covered by the account sued on were purchased by authority of the board of trustees; that no contract was ever entered into between plaintiff and defendant for the purchase of the supplies, but that, if such a contract was entered into, it was ultra vires; that at no time during the period covered by the account sued on was there any amount included in the approved estimate for current expenses of the town which could be applied to the payment of said account; that, during the time covered by said account, James E. Buchan was president of the board of trustees of the town of Covington, and was also manager of plaintiff's business in the town of Covington; and that therefore, if any contract for the purchase of the supplies was made by the board of trustees with the plaintiff, the same is void by reason of the relation of James E. Buchan to both plaintiff and defendant. This answer was verified and a reply was filed thereto, denying generally the allegations of new matter set up in the answer.
Upon the issues thus framed, the case was submitted to the court without the intervention of a jury on February 27, 1922, and at the conclusion of plaintiff's testimony both sides rested their case, and the court, thereafter, on April 15 1922, rendered judgment against the plaintiff and in favor of the defendant. After unsuccessful motion for new trial plaintiff has brought the case here by petition in error with case-made attached for review.
H. Z. Wedgwood, of Enid, for plaintiff in error.
Simons, McKnight & Simons, of Enid, for defendant in error.
LOGSDON, C. (after stating the facts as above).
Only one proposition is presented and argued in the brief of plaintiff for a reversal and that is that the trial court erred in rendering judgment in favor of the defendant and against the plaintiff.
An examination of the petition filed by plaintiff in the trial court discloses that it is an ordinary petition upon an open merchandise account. There is no allegation anywhere of a contract lawfully made and entered into between plaintiff and defendant, and there is no allegation that the goods alleged to have been purchased by defendant were purchased by any one having lawful authority to bind the town, or that the indebtedness, when incurred, was a lawful indebtedness for which the town could be held liable upon an implied promise to pay. It is nowhere alleged that the account was ever presented to the board of trustees of the town of Covington in the manner and form required by law, or that the same was ever acted upon and disallowed by the board of trustees. The testimony affirmatively shows that the claim was never verified prior to the commencement of this action.
It appears from an examination of the record in this case that the town of Covington issued bonds in the sum of $45,000 for the construction of a waterworks system, and that it issued bonds in the sum of $30,000 for the construction of a sewer system, and that, upon the sale of these bond issues, the town entered into a contract with a construction company for the construction of the two public utilities upon the basis of a guaranteed cost for which the construction company was to receive as full compensation for its services 15 per cent of such cost, and the town of Covington was to furnish all material used in the construction of said public utilities. No other appropriation was...
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